STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
MANASOTA-88, INC., )
)
Petitioner, )
)
vs. ) CASE NO. 87-2433
) AGRICO CHEMICAL CO. and STATE ) OF FLORIDA, DEPARTMENT OF )
ENVIRONMENTAL REGULATION, )
)
Respondent. )
)
RECOMMENDED ORDER
This cause was initially scheduled for a final administrative hearing before the undersigned Hearing Officer with the Division of Administrative Hearings on December 15, 1987. The sole issue for determination in this proceeding is whether the provisions of Section 120.60(2), Florida Statutes, require the Department of Environmental (DER) to issue Permit Number 531120329 to Agrico Chemical Company (Agrico) allowing it to mine wetlands in Polk County. On December 14, 1987, the parties filed a stipulation of facts with the undersigned and jointly moved for disposition and entry of a Recommended Order without the need for a final hearing. The parties further agreed that, if they so desired, proposed recommended orders and memoranda of law would be filed.
Only the respondent Agrico availed itself of this opportunity. Inasmuch as Agrico's proposed findings of fact are identical to the stipulated facts of all parties, they have been accepted and are incorporated herein.
APPEARANCES
For Petitioner Peter B. Belmont, Esquire Manasota-88, 511 31st Avenue North
Inc.: St. Petersburg, Florida 33704
For Respondent Joseph W. Landers, Jr., Esquire Agrico: Richard A. Lotspeich, Esquire
Landers, Parsons and Uhlfelder Post Office Box 271 Tallahassee, Florida 32302
For Respondent Richard T. Donelan, Jr., Esquire DER: Assistant General Counsel
2600 Blair Stone Road Tallahassee, Florida 32399-2400
FINDINGS OF FACT
Based upon the stipulated facts of the parties, as filed with the Division of Administrative Hearings on December 14, 1987, the following relevant facts are found: 1/
On October 31, 1985, the DER received from Agrico dredge and fill Application No. 531120329.
On May 8, 1986, the DER sent to Agrico a Notice of Completeness indicating that Application No. 531120329 was complete as of April 24, 1986.
On July 22, 1986, J. W. Landers, Jr. executed on behalf of Agrico a Waiver of 90 Day Time Limit, indicating that the waiver expired on August 1, 1986.
On or about July 28, 1986, DER personnel discussed with Agrico representatives the possible withdrawal of Application No. 531120329 as one of the conditions for the issuance of a permit for Application No. 531093999.
The DER failed to take action to approve or deny Application No. 531120329 on or before August 2, 1986.
On August 12, 1986, the DER issued Permit No. 531093999.
On August 23, 1986, Booker Creek Preservation, Inc. and Manasota-88, Inc. filed a Motion to Intervene Into Ongoing Environmental Licensing Proceeding and Petition For Formal Administrative Proceeding challenging the Department's issuance of Permit No. 531093999 and rendering that Permit to the status of intended agency action. This proceeding was assigned DOAH Case No. 86-3618. DOAH Case No. 86-3618 was scheduled for hearing on April 28-30, 1987.
By letter date March 2, 1987, Agrico withdrew Permit Application No. 531093999.
On May 8, 1987, the DER sent to Agrico a letter directing Agrico to publish public notice of the DER's intent to issue Permit No. 531120329 pursuant to Section 120.60(2), Florida Statutes.
On May 26, 1987, the DER received from Agrico a letter indicating that the public notice was published as required.
Manasota-88, Inc. timely requested an administrative hearing challenging the proposed issuance of Permit Number 531120329.
CONCLUSIONS OF LAW
Section 120.60(2), Florida Statutes, clearly requires that applications for licenses, which include environmental permits, be approved or denied within 90 days after receipt of either the original application or the receipt of timely requested additional information. Also see Section 403.0876, Florida Statutes. An agency's failure to timely take action on an application results in a deemed approval of the application and the issuance of the license. Section 120.60(2), Florida Statutes.
It is clear from the stipulated facts that Agrico's application for Permit Number 531120329 was declared complete as of April 24, 1986. Thus, the DER was required to either approve or deny the application on or before July 23, 1986. The applicant voluntarily extended this 90-day period by one week. The
DER was therefore required to act on the application by August 1, 1986, and did not do so. Consequently, as of August 2, 1986, the application was deemed approved and, pursuant to Section 120.60(2), Florida Statutes, issuance of the permit was mandatory.
When an agency fails to timely act upon an application, the permit issues by operation of law. World Bank v. Lewis, 406 So.2d 541 (Fla. 1st DCA, 1981); World Bank v. Lewis, 425 So.2d 77 (Fla. 1st DCA, 1982); and ADEC, Inc. v. Department of Natural Resources, 507 So.2d 1225 (Fla. 5th DCA, 1987). The only inquiry to be made is whether the facts support the issuance of a default permit. Stated differently, the issue is whether the agency timely approved or denied the application within the mandatory 90-day period. Here, the stipulated facts support the determination that more than 90 days elapsed since Agrico's application was deemed complete.
The fact that Agrico and the DER had discussions regarding the possible withdrawal of the instant application in return for the issuance of another permit had no effect upon the default nature of the subject permit. DER itself has raised no theory of estoppel in this proceeding. The stipulated facts demonstrate that the challenged application was not withdrawn before, and was therefore still pending on, August 1, 1986. It was thus deemed approved and issued by operation of statute on August 2, 1986.
As a final matter, Agrico has requested the undersigned to determine, pursuant to Section 120.59(6), Florida Statutes (1987), that Manasota-88, Inc. participated in this proceeding for an improper purpose and to recommend the award of costs and attorney fees. While Manasota-88 is the "nonprevailing adverse party" in this proceeding, there is insufficient evidence to establish that it participated for an improper purpose. The fact that Manasota-88 did not prevail in the legal merits of the default issue does not establish that its participation in this proceeding was primarily to harass, delay or needlessly increase the costs of securing the challenged permit. Nor do the stipulated facts establish the rebuttable presumption created under Section 120.59(6)(c), Florida Statutes (1987). Accordingly, it cannot be determined that Manasota-88 participated in this proceeding for an improper purpose.
Based upon the findings of fact and conclusions of law recited herein, it is RECOMMENDED that Permit Number 531120329 be issued to Agrico Chemical Company as of August 2, 1986, and that the petition filed by Manasota-88, Inc. challenging this permit be DISMISSED.
Respectfully submitted and entered this 18th day of February, 1988, in Tallahassee, Florida.
DIANE D. TREMOR
Hearing Officer
Division of Administrative Hearings The Oakland Building
2009 Apalachee Parkway
Tallahassee, Florida 32399-1550
(904) 488-9675
Filed with the Clerk of the Division of Administrative Hearings this 18th day of February, 1988.
ENDNOTE
1/ By a prior Order entered in this proceeding on July 28, 1987, the environmental issues contained in the initial petition filed on behalf of Manasota-88, Inc. were stricken and the issues were limited to the appropriateness of issuing Agrico a default permit pursuant to Section 120.60(2), Florida Statutes.
COPIES FURNISHED:
Peter B. Belmont, Esquire
511 31st Avenue North
St. Petersburg, Florida 33704
Joseph W. Landers, Jr., Esquire Richard A. Lotspeich, Esquire Landers, Parsons and Uhlfelder Post Office Box 271 Tallahassee, Florida 32302
Richard T. Donelan, Jr., Esquire Assistant General Counsel
2600 Blair Stone Road Tallahassee, Florida 32399-2400
Dale Twachtmann, Secretary Department of Environmental
Regulation
2600 Blair Stone Road Tallahassee, Florida 32399-2400
================================================================= ORDER DECLINING REMAND
=================================================================
STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
MANASOTA-88, INC., )
)
Petitioner, )
)
v. ) CASE NO. 87-2433
)
AGRICO CHEMICAL COMPANY and ) STATE OF FLORIDA, DEPARTMENT OF ) ENVIRONMENTAL REGULATION, )
)
Respondents. )
)
ORDER DECLINING REMAND
This cause comes before the undersigned on the Motion to Reject Remand filed by respondent, Agrico Chemical Company. The Department of Environmental Regulation (DER) and the petitioner, Manasota-88, Inc. have filed responses in opposition to the Motion.
The procedural history of this case is fully set forth in the Recommended Order entered by the undersigned on February 18, 1988. Briefly summarizing, DER was required to act upon Agrico's application for a dredge and fill permit on or before August 2, 1986. On May 8, 1987, the DER directed Agrico to publish public notice of the DER's intent to issue the permit pursuant to Section 120.60(2), Florida Statutes, which provides that license applications not approved or denied within ninety (90) days shall be deemed approved. Public notice was published, and Manasota-88, Inc. requested an administrative hearing challenging the proposed issuance of the permit. The petition for hearing was transferred by DER to the Division of Administrative Hearings, and the undersigned was designated as the Hearing Officer. Preliminarily, Agrico moved to dismiss the petition for hearing, the undersigned issued an Order that treated that motion as a motion to strike the environmental issues raised by Manasota-88, granted the motion and determined that the sole issue to be heard would be whether Agrico was entitled to a default permit pursuant to Section 120.60(2), Florida Statutes, and that evidence relating to the environmental impact of the project would be excluded. Thereafter, the parties entered into a Stipulation and Joint Motion for Disposition and Entry of Recommended Order.
The parties, including counsel for the DER, stipulated and agreed that the facts established that the statutory 90-day time period for approving or denying an application for a license was exceeded. Thereafter, the undersigned issued a Recommended Order to the Department of Environmental Regulation that the default permit be issued and that the petition challenging that permit be dismissed.
By Order of Remand, the Department of Environmental Regulation discussed the "direct conflict between two very fundamental concepts in Florida's Administrative Procedures Act: the right of a permit or license applicant to receive a definitive decision from an agency on an application within a specified period of time; and the right of persons whose substantial interests are affected by any agency decision to challenge that decision." After a discussion regarding equitable considerations and a concern for broad access to administrative adjudicatory proceedings in Florida, the DER Secretary set aside the Recommended Order of Dismissal and remanded the cause to the Division of Administrative Hearings for an evidentiary proceeding.
The Division of Administrative Hearings, through the undersigned Hearing Officer, respectfully declines to accept the remand in this proceeding. Section 120.60(2), Florida Statutes, is absolutely clear that when an agency fails to timely act upon a permit application, the permit issues by operation of law.
The decisions of the First and Fifth District Courts of Appeal, as cited in the Recommended Order, are equally clear on this subject. There is no discretion
to be exercised by an agency in this regard. The conduct of an evidentiary hearing on environmental concerns would be a meaningless act, since regardless of any evidence presented at that hearing, the subject permit must be issued pursuant to Section l20.60(2), Florida Statutes. To hold otherwise would be to completely disregard that statutory requirement and the case law interpreting the same.
The dispositive issue in this case, i.e., whether Agrico is entitled by law to a default permit, is not susceptible to the equitable considerations posed in the Order of Remand. The application of Section 120.60(2), once the facts are established to trigger that default permit provision, is not a matter over which the DER may rightfully claim special insight. Likewise, the application of that section is not a matter of policy within the DER's delegated discretion, nor is it a matter "infused by policy considerations for which [that] agency has special responsibility." McDonald v. Department of Banking and Finance, 346 So.2d 569, at 579 (Fla. 1st DCA, 1977). No matter how laudable the DER's concerns regarding broad access to the Administrative Procedure Act and the rights of third parties in default situations, the legislature has mandated the result which must occur when an agency fails to act within the required time period. The conduct of a formal administrative hearing for the receipt of evidence with regard to whether the proposed project complies with the DER's permitting requirements would be a meaningless act. The purpose of such a proceeding would be to formulate agency action with regard to the permit application. The Legislature, through Section 120.60(2), having mandated what that action must be, no purpose would be served by a formal administrative hearing.
There being no statutory authority for a remand to the Hearing Officer and no exceptional circumstances under which a remand can be justified in this proceeding, the undersigned respectfully declines to accept the Order of Remand. Accordingly, this cause is returned to the Department of Environmental Regulation for entry of a Final Order.
Respectfully submitted and entered this 23rd day of November 1988, in Tallahassee, Florida.
DIANE D. TREMOR
Hearing Officer
Division of Administrative Hearings The Oakland Building
2009 Apalachee Parkway
Tallahassee, Florida 32301
(904)488-9675
Filed with the Clerk of the Division of Administrative Hearings this 23rd day of November 1988.
COPIES FURNISHED:
Peter B. Belmont, Esquire
511 31st Avenue North
St. Petersburg, Florida 33704
Richard Donelan, Esquire Department of Environmental
Regulation
2600 Blair Stone Road Tallahassee, Florida 32399-2400
Joseph W. Landers, Jr., Esquire Richard A. Lotseich Esouire Post Office Box 271 Tallahassee, Florida 32302
Dale Twachtmann, Secretary Department of Environmental
Regulation
2600 Blair Stone Road Tallahassee, Florida 32399-2400
================================================================= RECOMMENDED ORDER
=================================================================
STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
MANASOTA 88 INC., )
)
Petitioner, )
)
vs. ) CASE NO. 87-2433
) DEPARTMENT OF ENVIRONMENTAL ) REGULATION and AGRICO )
CHEMICAL COMPANY, )
)
Respondent. )
)
RECOMMENDED ORDER
Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, K. N. Ayers, held a public hearing in the above- styled case on October 26-27, 1989, at Tampa, Florida.
APPEARANCES
For Petitioner: Peter B. Belmont, Esquire
511 31st Avenue North
St. Petersburg, Florida 33701
For Respondent Joseph W. Landers, Esquire AGRICO: Richard Lotspiech, Esquire
Post Office Box 71
Tallahassee, Florida 32302
For Respondent Richard T. Donelan, Jr., Esquire DER: 2600 Blairstone Road
Tallahassee, Florida 32399-2400 STATEMENT OF THE ISSUES
Whether Agrico Chemical Company should be granted a permit to mine and reclaim 69.8 acres of jurisdictional wetlands in the upper Payne Creek watershed in Polk County, Florida, as applied for in Permit Application NO. 53-1120329.
PRELIMINARY STATEMENT
Although this case has a long and stormy history, for the purposes of these proceedings, it was initiated when the Second District Court of Appeals on June 16, 1988, granted Manasota 88's Petition for a Writ of Mandamus and directed the Hearing Officer to conduct an evidentiary hearing on the merits of a dredge and fill permit application submitted to the Department of Environmental Regulation (DER) by Agrico Chemical Co. (Agrico). In this permit application, Agrico seeks a permit to dredge and reclaim 69.8 acres of jurisdictional wetlands in the upper Payne Creek watershed in Polk County, Florida, as applied for in Permit Application NO. 53-1120329.
Following remand, this case was first scheduled to be heard October 18, 1989. Before the scheduled hearing date, Agrico modified the application regarding its mitigation plan to gain acceptance by DER, and a short continuance was granted to Manasota to allow time to rebut the modification.
As required by prehearing order, the parties submitted a prehearing stipulation. Findings 1 - 15 below are taken from this prehearing stipulation.
At the commencement of the hearing, Petitioner moved to limit Agrico's evidence regarding mitigation to the mitigation plan previously shown to Petitioner or for a continuance to allow Petitioner additional time to prepare to rebut what Petitioner perceived to be material changes in the application. This motion was denied; however, Petitioner was advised that upon completion of the hearing a motion to hold the hearing open to allow Petitioner time to submit its expert's testimony would be considered. Although the modifications to the mitigation plan submitted at the hearing were not deemed by this Hearing Officer to be substantial changes, Petitioner was allowed approximately three weeks in which to take the deposition of its expert and submit this testimony as a late- filed exhibit. Scheduling difficulties developed, and when these were communicated to the Hearing Officer, he also learned that Petitioner's witness intended to testify that insufficient evidence had been presented to evaluate the efficacy of the mitigation plan. Petitioner was then advised that such testimony would constitute a legal conclusion and was improper. Thereafter the parties stipulated that Petitioner would submit a proffer of what this witness would testify if his deposition was taken. This has been received and marked Exhibit 32.
During the hearing, Agrico as applicant called five witnesses and recalled one in rebuttal, DER called one witness, Manasota 88 called five witnesses, and
32 exhibits were admitted into evidence.
Proposed recommended orders have been submitted by the parties. All proposed findings are accepted, except as noted in the Appendix attached hereto
and made a part hereof. Those proposed findings not included below were deemed unnecessary to the conclusions reached.
FINDINGS OF FACT
On October 31, 1985, Agrico filed an application (No. 53-1120329) with the Department for a permit to mine phosphate rock from and then reclaim wetland areas in Section 36, Township 32 South, Range 23 East and Section 31, Township
32 South, Range 24 East, Polk County. These areas are owned by Agrico. On January 31, 1986 and April 24, 1986, in response to determinations of incompleteness issued by the Department, Agrico supplied additional information which supplemented the original application. The application was determined to be complete by
the Department on April 24, 1986.
On July 22, 1986, Joseph W Landers, Jr., executed, on behalf of Agrico, a Waiver of 90-Day Time Limit, indicating that the waiver expired on August 1, 1986.
The Department failed to take action to approve or deny the subject application on or before August 2, 1986.
On May 8, 1987, the Department directed Agrico to publish notice of the Department's intent to issue the permit pursuant to the default provisions of Section 120.60(2), Florida Statutes. The Department's notice of intent to issue was published in the Polk County Democrat, a newspaper of general circulation in the location of the project site on May 18, 1987.
Manasota objected to the Department's proposed issuance of the permit by filing its Petition to Intervene and Request for Formal Hearing with the Department on May 22, 1987.
The parties to this proceeding subsequently entered into a Stipulation and Joint Motion for Disposition and Entry of Recommended Order on December 14, 1987.
On February 18, 1987, Hearing Officer Diane A. Tremor entered a Recommended Order finding that the subject permit was deemed approved pursuant to the default provision of Section 120.60(2), Florida Statutes, and concluding that the Permit No. 53-1120329 should be issued.
On March 31, 1988, the Secretary of the Department entered an Order of Remand remanding the case to the Division of Administrative Hearings to convene an evidentiary hearing on the merits of the subject matter.
On May 2, 1988, Agrico filed a Petition for Writ of Mandamus with the Second District Court of Appeal (DCA), requesting the Court to order the Department's Secretary to issue the subject permit. On July 26, 1988, the Second DCA denied the Petition for Writ of Mandamus.
On November 23, 1988, Hearing Officer Tremor entered an Order Declining Remand.
On December 28, 1988, Manasota filed a Petition for Writ of Mandamus requesting the Second DCA to order Hearing Officer to hold the evidentiary hearing.
On June 16, 1989, the Second DCA entered an Opinion which granted Manasota's Petition for Writ of Mandamus.
The wetlands that make up the project site are part of the wetland and riverine system that forms the watershed of upper Payne Creek. This mining area is located in the southwest corner of Polk County.
Payne Creek is not an Outstanding Florida Water.
There are no significant historical or archeological resources in the project area.
No evidence was submitted that the wetlands in questions are utilized by or provide habitat for any threatened or endangered species.
The proposed project involves the mining of 69.8 acres of DER jurisdictional wetlands. The initial step in the mining process will be to construct a ditch and berm system around the project area. This ditch and berm system will effectively segregate the mining area from the adjacent wetland areas of Payne Creek that are to remain undisturbed. Accordingly, the mining operations will not have an adverse impact upon the quality of surface water outside the project area. Upon completion of the reclamation activity, the water quality in the project area will be restored to pre-mining condition, and Agrico will monitor water quality during the permit period.
The wetlands within the project area are composed of approximately 42 acres of herbaceous wetlands and approximately 27.8 acres of forested wetlands.
Since phosphate mining involves removing the overburden on the phosphate, this process perforce removes all vegetation, and, for the moment, destroys all vegetation in the mining site thereby rendering the wetlands mined incapable of performing the ecological functions performed by wetlands.
Accordingly, the issues for decision involved not whether the proposed dredging will adversely affect the wetlands being mined but whether, following the mining, the areas mined can be restored to functioning wetlands to mitigate the adverse effects of mining or additional wetlands are created in sufficient magnitude to adequately mitigate the functional loss of wetlands caused by the mining.
During the mining process the phosphate rock is removed from the matrix which is composed primarily of phosphate rock, sand and clay. The sand "tailings" generated by this process are pumped back to the mined area to be used in the reclamation process -- the onsite mitigation.
The first step in the onsite mitigation will be the pumping of sand tailings back into the project area to create a land surface at approximately the original grade. The previously removed overburden material will then be spread over the sand tailings and recontoured to its original configuration. Stockpiled organic muck material will be spread over the reclamation area to provide a nutrient source to support plant growth. The final contours are subject to approval by DER to assure they are appropriate. Following completion of the contouring, the portion of the project to be reclaimed will be inundated with water and revegetated with desirable forested and herbaceous wetland species.
Agrico has some experience in creating wetlands. In 1982, Agrico started an experimental project to create wetlands in an area now known as Morrow Swamp. In 1986, Agrico constructed a Composite Mitigation Area (CMA) of some 206 proposed wetland acres of which it has used 107 unspecified acres as mitigation for three Agrico permits granted to mine wetland areas.
Man's attempts to create wetlands in Florida has been ongoing for less than 10 years, and it takes at least 20 years for a forested wetland to mature. Accordingly, Petitioner can rightly claim that it has not been conclusively proven that a forested wetland can be created.
To date the prospects for creating forested wetlands in the CMA are promising, and this area is closely monitored by Agrico with the results provided to DER. It will take a long time for the trees to mature to the point they provide the canopy cover characteristic of fully functioning forested wetlands.
With respect to creating herbaceous wetlands, success is more apparent. This is largely due to the fact that the smaller plants comprising herbaceous wetlands mature in a much shorter time than do the trees which comprise forested wetlands.
Success has been attained in sawgrass mitigation which earlier on was thought to be a species of wetland vegetation impossible to cultivate. Agrico has been an important player in creating wetlands and has demonstrated a cooperative attitude in making every effort to fulfill its permit responsibilities.
Agrico has agreed to comply with all conditions sought by DER if the permit is granted. Vegetation and water quality in the mitigation areas will be subject to extensive short term and long term monitoring by Agrico. The results of this monitoring will be submitted to DER, and the project will not be released from regulatory scrutiny until certain department-specified success criteria are met. Agrico has acknowledged a continuing obligation to complete the mitigation and to correct any unsuccessful mitigation attempts beyond expiration date of the permit.
Agrico should be able to control the growth of nuisance species, such as cattail and primrose willow, in accordance with DER's current policy. This policy, which will be implemented as a condition of any permit issued in this matter, is that nuisance species will be limited to 10 percent or less of the total cover or, if these species exceed 10 percent of the total cover, their density must be declining over several years. Agrico has provided reasonable assurance that it can restore the type, nature, and functioning of the wetlands it proposes to mine.
The mitigation plan initially proposed by Agrico was revised upward as these proceedings neared the hearing stage, and, as finally presented at the hearing, provided for the creation of 118.6 acres of onsite wetlands (56.1 acres forested and 62.5 acres herbaceous). This plan increased the ratio of forested to herbaceous wetlands in the onsite mitigation plan without changing the area and divided the mitigation site into five small wetlands instead of the one large area earlier proposed.
It is normal practice for DER to incorporate into a permit a requirement that field engineering details of a mitigation plan be worked out after a permit is issued. Details of the onsite mitigation which will be required include:
The incorporation of organic topsoil or mucky fine sand on the surface of the wetland.
The size and topography of the drainage basin in relation to the proposed wetland.
The topography of the proposed wetland at a fine scale of detail.
Details of the planting scheme including species to be planted, mulching, and the source of the plants the mulch.
The source of water to the proposed wetland.
How the onsite mitigation plan relates to the DNR conceptional reclamation plan.
The wetlands created in the CMA have already restored the type, nature, and function of the wetlands to be impacted by the proposed project. In addition, the onsite wetlands reclamation will provide additional mitigation to replace the type, nature, and function of the wetlands proposed to be mined.
The proposed mitigation wetland will provide more wetland functions than are now provided by the existing wetlands proposed to be mined.
Agrico's combined mitigation plan provides for the creation of a total of 188.4 acres of wetlands (69.8 acres in the CMA and 118.6 acres in the onsite plan) to offset the loss of 69.8 acres of wetlands in the project area. This constitutes a ratio of 2.7 to 1. This includes the creation of 82.9 acres of forested wetlands to offset the loss of 27.8 acres of forested wetlands in the project area. This is a ratio of approximately 3 to 1 for the forested wetlands.
The Department's current policy for mining phosphate in wetlands requires mitigation at a one to-one ratio. This same policy for forested wetlands requires generally a ratio greater than two to one. Agrico's mitigation plan meets the guidelines of both of these policies.
The proposed mitigation plan is subject to approval by the Department of Natural Resources under its mandatory lands reclamation program.
No evidence was presented that the site of the proposed project has any fishing or other recreational value; will have any adverse impact on the public health, safety, or welfare or the property of others; will have any adverse impact on navigation or the flow of water; or that there are any significant historical or archeological resources in the project area.
The proposed project will not have any cumulative impact can the upper Payne Creek watershed.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of, these proceedings. The controlling
statute in dredge and fill applications involving wetland mining is Chapter
403.91 et seq., Florida Statutes, the Warren S. Henderson Wetlands Protective Act of 1984.
As stated by the Court in 1800 Atlantic Developers v. Department of Environmental Regulation and City of Key West, Fla. 1st DCA Case NO. BQ-267, Opinion filed November 9, 1989:
The statutory scheme established by the Warren S. Henderson Wetlands Protection Act of 1984, Sections 403.91 - 403.929, Florida Statutes (1985), is intended to regulate dredge and fill activities in certain waters and wetlands of the State of Florida for the purpose of protecting and preserving the natural balance of the environment as much as possible. The statutory purpose is to be accomplished in two ways. First, the statute requires
conformance to water quality standards for wetlands to be established by rules duly adopted by DER. Section 493.918(1),
Fla. Stat. (1985). Second, the statute requires an applicant to demon-
strate that "the project is not contrary to the public interest" or, if the project "significantly degrades or is within an Outstanding Florida Water, . . . the
applicant must provide reasonable assurance that the project will be clearly in the public interest." Section 403.918(2),
Fla. Stat. (1985).
* * *
. . .the statute sets forth seven criteria to be considered and balanced by DER in determining whether a project is not con- trary to the public interest, or is clearly in the public interest. . . While the obvious statutory purpose is to regulate dredging or filling activity to prevent or limit harm to the natural environment in
the respects described in the statute, there is no manifest statutory intent to prohibit the owner from conducting dredging and filling activities altogether.
Section 413.918(1), Florida Statutes (1985), provides that a permit may not be issued under this Act unless the applicant provides the Department with reasonable assurances that water quality standards will not be violated. By isolating the project area with ditch and berm reasonable assurances are provided that the mining activity will not violate water quality standards.
Monitoring water quality after the restoration has been completed, as Agrico has agreed to, provides reasonable assurances that water quality standards will not be violated after completion of the onsite mitigation.
The seven criteria, as noted above, are contained in Section 403.918(2), which provides:
In determining whether a project is not contrary to the public interest . the department will consider and balance the following criteria:
Whether the project will adversely affect the public health, safety, or welfare or the property of others;
Whether the project will adversely affect the conservation of fish or wildlife, including endangered or threatened species, or their habits;
Whether the project will adversely affect navigation or the flow of water or cause harmful or erosion or shoaling;
Whether the project will adversely affect the fishing or recreational values or marine productivity in the vicinity of the project;
Whether the project will be of a temporary or permanent nature;
Whether the project will adversely affect or will enhance significant historical and archeological resources under the provisions of S. 267.061; and
The current condition and relative value of functions being performed by areas affected by the proposed activity.
Subsection (b), immediately following, provides:
If the applicant is unable to otherwise meet the criteria set forth in this subsection, the department, in deciding to grant or deny
a permit, shall consider measures proposed
by or acceptable to the applicant to mitigate adverse affects which may be caused by the project.
* * *
Reclamation and restoration programs conducted pursuant to S. 211.32 may be considered as mitigation to the extent they restore or improve the water quality and the type, nature, and function of biological systems present at the site prior to the commencement of mining activities.
Here the applicant meets the "not contrary to public interest" criteria with the exception of number 7. In considering this factor, and in compliance with the provisions of Section 403.918(2)(b), Agrico has proposed, and DER has accepted, the mitigation plan above discussed to counter the adverse effects to be caused by the proposed mining. By providing a 2.7 to 1 ratio of mitigation-of wetlands to the wetlands destroyed by the mining and a 3 to 1 ratio for forested wetlands, the public interest criteria has been met by Agrico.
From the foregoing, it is concluded that Agrico has presented reasonable assurances that the mitigation plan proposed to offset the adverse impact on wetlands to be caused by the proposed mining are feasible, the project will not adversely affect the water quality in the area, and it will not be contrary to the public interest.
RECOMMENDATION
It is recommended that Agrico Chemical Co. be issued dredge and fill permit NO. 43-1120329 to mine 69.8 acres of wetlands in the upper Payne Creek watershed with those conditions specified in DER draft permit dated May 1, 1987, supplemented with appropriate conditions regarding the revised onsite and composite mitigation areas as listed under Findings of Fact No. 31.
ENTERED this 5th day of January, 1990, in Tallahassee, Florida.
K. N. AYERS Hearing Officer
Division of Administrative Hearings The DeSoto Building
1230 Apalachee Parkway
Tallahassee, Florida 32399-1550
(904) 488-9675
Filed with the Clerk of the Division of Administrative Hearings this 5th day of January, 1990.
APPENDIX
Petitioner's proposed findings are accepted, except:
3. Rejected only insofar as it indicates the reclamation and revegetation of the site is complete and the applicant has no further obligation.
6. Second sentence word "highly" rejected.
8. Second sentence, words "the principle" (sic) rejected in favor of the word "one".
11. Rejected as unsupported by credible evidence.
14. Rejected insofar as the size of the onsite mitigation plan is concerned and with respect to the elevations for the onsite mitigation area.
16. Rejected.
18. Rejected.
21. Rejected.
30. See HO #24.
33. See HO #24.
34 See HO #24.
See HO #24.
Rejected insofar as it concludes that reclamation of mined areas is not likely to succeed.
39. Accepted only insofar as consistent with HO #27.
Second sentence word "highly" is rejected. Last two sentences rejected.
Rejected.
Rejected.
Rejected.
Rejected.
Respondent Agrico's proposed findings are accepted, except:
14. Rejected as a legal conclusion.
23. First sentence word "significantly" rejected.
33. Accepted only insofar as consistent with HO #24.
Respondent DER's proposed findings are accepted, except:
Accepted insofar as consistent with HO #24.
COPIES FURNISHED:
Peter B. Belmont, Esquire
511 31st Avenue North St. Petersburg, FL 33701
Joseph W. Landers, Esquire Richard Lotspiech, Esquire Post Office Box 71 Tallahassee, FL 32302
Richard T. Donelan, Jr., Esquire 2600 Blairstone Road
Tallahassee, FL 32399-2400
Dale H. Twachtmann Secretary
Department of Environmental Regulation Twin Towers Office Building
2600 Blair Stone Road Tallahassee, FL 32399-2400
Daniel H. Thompson General Counsel
Department of Environmental Regulation Twin Towers Office Building
2600 Blair Stone Road Tallahassee, FL 32399-2400
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AGENCY FINAL ORDER
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BEFORE THE STATE OF FLORIDA DEPARTMENT OF ENVIRONMENTAL REGULATION
MANASOTA-88, INC.,
Petitioner,
vs. DOAH Case No. 87-2433
OGC File No. 87-0664
AGRICO CHEMICAL COMPANY, and STATE OF FLORIDA DEPARTMENT OF ENVIRONMENTAL REGULATION,
Respondents.
/
FINAL ORDER
On January 5, 1990, the Hearing Officer from the Division of Administrative Hearings submitted to the Department of Environmental Regulation ("Department") and all other parties to this action his Recommended Order, a copy of which is attached as Exhibit "A." Manasota-88, Inc., ("Manasota") and Agrico Chemical Company ("Agrico") filed exceptions to the Recommended Order. Agrico filed a response to Manasota's exceptions. All of these pleadings were timely filed and are part of the record. The matter thereupon came before me as Secretary of the Department for final agency action.
BACKGROUND
This proceeding concerns a challenge brought by Manasota to the Department's notice of intent to issue a dredge and fillpermit to Agrico to dredge, mine phosphate mineral, and then reclaim and restore 69.8 acres of jurisdictional wetlands in the upper Payne Creek watershed in Polk County, Florida. The wetlands within the project area are composed of approximately 42 acres of herbaceous wetlands and 27.8 acres of forested wetlands. The waters involved are not classified as Outstanding Florida Waters. The permit requires that the adverse effects of the project be mitigated by the creation of a total of 188.4 acres of wetlands, of which 82.9 acres will be forested wetlands, and the remaining 105.5 acres will be herbaceous wetlands.
As the Hearing Officer appropriately observed, this matter has a long and stormy history. Agrico's original application was filed on October 3l, 1985. The 90 day statutory deadline for granting or denying the permit was waived by Agrico, but the waive expired by its own express terms on August 1, 1986.
However, the Department did not act to approve or deny the application by August 2, 1986.
On May 8, 1987, the Department directed Agrico to publish notice of the Department's intent to issue the permit pursuant to the default provisions of Section 120.60(2), Florida Statutes. Manasota objected to permit issuance and
timely filed a petition to intervene. On May 2, 1988, Agrico filed a p tition with the Second District Court of Appeal for a Writ of Mandamus to compel the Department to issue the permit under the default provision of Section 120.60(2), Florida Statutes. On July 26, 1988, Agrico's petition for Writ of Mandamus was denied without an opinion. Arico Chemical Co. v. State of Florida Department of Environmental Regulation et al., No. 88-1201 (Fla. 2d DCA, July 26, 1988).
In the first administrative proceeding the parties filed a stipulation of facts and jointly moved for disposition without a final hearing on the sole question of whether Agrico, by virtue of the provisions of Section 120.60(2), was entitled to the permit by default. Hearing Officer Diane A.
Tremor concluded that the default provision required the issuance of the permit, and on February 18, 1988, issued her Recommend Order that a final order be entered to that effect. On March 31, 1988, I rejected that recommendation and remanded the case to the Division of Administrative Hearings for a full evidentiary hearing.
Ms. Tremor thereupon issued an "Order Declining Remand," and Manasota applied to the Second District Court of Appeal for a Writ of Mandamus to compel the Division of Administrative Hearings to accept the remand. On June 16, 1989, the Second District Court of Appeal granted the petition for Writ of Mandamus and remanded the matter to the Divsion of Administrative Hearings for a full evidentiary hearing. Manasota-88, Inc. v. Tremor, 545 So.2d 439 (Fla. 2d DCA 1989). On October 26 and 27, 1989, newly assigned Hearing Officer K. N. Ayers held an evidentiary hearing at Tampa, Florida, and the matter now returns to me for final agency action.
RULINGS ON MANASOTA'S EXCEPTIONS
Exceptions to Findings of Fact Exception No. 1
Manasota first takes exception to the final two sentences of the Hearing Officer's recommended finding of fact no. 17. The first sentence is a proposed finding of fact that the mining operations will not have an adverse impact upon the quality of surface water outside the project area. Mr. Kevin Erwin, accepted as a qualified expert in the areas of herbaceous wetlands, forested wetlands and water quality, (Tr. at 164A) testified that the planned project would not cause water quality violations outside of the project area. (Tr. at 204) Mr. Selwyn L. Presnell testified that the project area would be isolated by 1erms and ditches to prevent any runoff of water from the project site, and thus prevent any water quality violations outside of the project. (Tr. at 55-56) The record therefore contains competent, substantial evidence in support of the proposed finding of fact and I am not at liberty to disturb it. Section 120.57(1)(b)10., Florida Statutes.
Manasota also takes exception to the proposed finding that upon completion of the reclaimed activity the water quality inside the project area will be restored to the pre-mining condition. Mr. Erwin testified that the wetlands to be restored on-site would replace a significantly impacted wet land which had lost much of its functions with a wetland which is functional. (Tr. at 205-206) The stressed nature of the existing on-site wetlands was also noted by Ms. Ann M. Redmond, accepted as a qualified expert in wetlands ecology and
mitigation. (Tr. 361-63) Mr. Erwin further testified that the wetlands to be restored on-site would replace the functions of the original wetlands and meet the standards of biological integrity. (Tr. at 205-206, 182, and generally 165-206)
Ms. Redmond also testified that the Department would probably have reasonable assurance to issue the permit based on water quality considerations, and that any water-quality concerns about the restored on-site wetlands would likely be resolved upon receipt of the details of the mitigation plans. (Tr. at 361, 363-64) There being competent, substantial evidence in the record to support the Hearing Officer's proposed finding of fact, I am. not at liberty to reject it. Therefore, Manasota's Exception No. 1 is rejected.
Exception No. 2
Manasota takes exception to the manner in which the Hearing Officer framed the issues in finding of fact No. 20 of the Recommended Order. Manasota focuses on the last sentence of Section 403.918(2)(b), Florida Statutes, and contends that the sentence provides the only means and measure of adequate mitigation for this type of project. However, Section 403.918(2)(b), when read in its entirety, provides for a broader means and measure of adequate mitigation. The Hearing Officer correctly stated that the issue was whether, following the mining, the areas mined can be restored to functioning wetlands so as to mitigate the adverse effects of mining, or whether additional wetlands are created in sufficient acreage to mitigate adequately the adverse effects of the mining. Manasota's.
Exception No. 2 is therefore rejected. Exceptions Nos. 3, 4 5 (in part), 7, 11 and 12
The above noted exceptions essentially object to the Hearing Officer's finding of fact that Agrico has provided reasonable assurance that it can restore and create wetlands of the same type, nature and function of the wetlands it proposes to mine. Mr. Ronnie Best, accepted as an expert in wetlands ecology, testified that Morrow Swamp, a created, young forested wetlands, has clear indications of success. Best also testified that he has no doubt that it will successfully mature into a forested wetland. (Tr. at 280, and generally 276-289) Dr. Best further testified that even with today's limited knowledge one can be very successful in creating both marsh and forested" wetlands, (Tr. at 281) add that Morrow Swamp is a created, fully4unctional forested wet land with the exception of the function of a mature forest. (Tr. at 282)
Mr. Erwin testified that with proper design and long term management one can create a wet land that will meet the Department's standards of biological integrity. (Tr. at 182, and generally 167-82) Ms. Redmond testified that she had reasonable assurance that, with proper wetland design and management, forested wetlands can be created. (Tr. at 333, and generally 331- 335)
Mr. Jerry Cutlip, accepted as an expert in wetlands ecology, testified that it is possible to successfully create a sawgrass wetland. (Tr. at 247, and generally 242-247) Mr. Allen G. Shuey, also accepted as an expert in wetlands ecology, testified that there now is sufficient knowledge to have reasonable assurance that a sawgrass wetland can be created. (Tr. at 456)
Although the record contains testimony that some created wetlands experience invasion by nuisance species such as cattails, (Redmond, Tr. at 383; Brinson, Tr. at 488-89) there is also testimony that wetlands have
been successfully created without nuisance species in excess of the level required by the Department's success criteria. (Presnell, Tr. at 71-73; Brinson, Tr. at 490) Redmond observed that even an area now having problems with cattails might be a "good wetland" in "a couple of years." (Tr. at 383) Manasota does not point out any testimony which would support a finding that nuisance species-cannot be successfully controlled, and I find no such testimony in the record.
The fact that the Hearing Officer accepted Manasota's proposed finding that none of the created forested wetlands has reached maturity is not inconsistent with the Hearing Officers recommended findings of fact. The Hearing Officer weighed the various factors, including the likelihood of successful
restoration and creation of additional wetlands. There being competent, substantial evidence in the record to support the Hearing Officer's finding of fact, it is not for me to reweigh the evidence, and I shall not overturn it. Therefore, Manasota's Exceptions Nos. 3, 4, 5 (in part), 7, Il and 12 are rejected. The remaining portion of exception number 5, which essentially asserts that insufficient information was provided by Agrico to give reasonable assurances as to the success of the mitigation, is addressed below with exceptions numbers 6, 9, l0 and l3.
Exceptions Nos. 5 (in part), 6. 9 and 10 and l3
The last paragraph of Exception 5, and Exceptions 6, 9, 10 and 13, concern the issues of whether the application was complete so as to allow a determination of the adequacy of the proposed mitigation, and whether
modifications to the mitigation plan proposed at the hearing are so extensive as to render the administrative determination a denial of due process.
Manasota recognizes that certain "field engineering details" may have to be resolved in the field as the mitigationroject is created, but Manasota asserts that so many details were left for field engineering that it is not possible to determine if reasonable assurance had been provided that the mitigation will be successful. This issue has been frequently raised in past proceedings. See, e.g., Kralik, et al. vs. Ponce Marina, et 11 FALR 669 (DER Final Order, Jan. 11, 1989). While a clear determination of the scope and effects of the project is essential to the determination of whether a permit should issue, there are often circumstances in which a certain amount of "field engineering" must be done on a project that cannot be fully explored at the hearing. Kralik, id.; Florida Keys Citizens Coalition, et al. v. 1800 Atlantic Developers, 8 FALR 5564 (DER Final Order, October 17, 1986), rev'd. on other grounds, 1800 Atlantic Developers v. Department of Environmental Reulation, 552 So.2d 946 (Fla. 1st DCA 1989). This permissable level of field engineering in no way alters the applicant's burden of proof to show that reasonable assurance has been provided. Ms. Redmond testified that she had reasonable assurance that water quality concerns in the restored mining area would be resolved with the submission of the final mitigation plan details. (Tr. at 361) The details which remain to be provided were summarized by the Hearing Officer in paragraph 31 of his Recommended Order. The Hearing Officer recommended that these details be specifically incorporated into the
permit as a condition. Although these details are well within the acceptable limits for "field engineering," I shall accept te-Hearing Officer's recommendation.
Manasota also contends that the changes to the mitigation plans are major changes which cannot be considered at the hearing. As long as there is an opportunity at the hearing to explore the issues related to a proposed modification or change, and there is adequate support in the record for the findings of fact, due process is not denied and no error is committed.
Hopwood v. Department of Environmental Reulation, 402 So.2d 1296 (Fla. 1st DCA 1981); Manatee Counts v. DePartment of Environmental Regulation, 429 So.2d 360 (Fla. 1st DCA 1983), rev. den., 438 So.2d 833 (Fla. 1983).
Manasota argues that it was not informed of the changes before the hearing, and that the change subdividing the previously proposed single on-site mitigation wet land into five areas of different size and shape is too major to be properly considered at the hearing. The changes to the mitigation plan were made to address certain concerns raised by the Department. (Tr. at 210) Mr.
Erwin testified that the changes which were suggested by the Department improved the mitigation plan. (Tr. at 208-209) Erwin testified that changing from one large wetland to five inter-connected wetlands would more closely approximate the nature of the 9riginal wetlands, (Tr. at 208) and that the total acreage, hydrology, soils, mulching, vegetation and design criteria remained the same. (Tr. at 206-213)
Manasota had an opportunity at the hearing to explore the issues related to the proposed modification, and ws-allowed three weeks to submit expert testimony by deposition on how the change might affect the likelihood of success, hydrology or other issues related to whether reasonable assurances had been provided that the mitigation would offset the adverse effects of the project. (Tr. at 212; Recommended Order at 3) Since the record contains competent, substantial evidence to support the Hearing Officer's finding that the modifications were minor, and since Manasota had an opportunity to explore the issues related to the efficacy of the modified mitigation plan, I shall not disturb the Hearing Officer's findings of fact. Therefore, Manasota's Exceptions 5, 6, 9, 10 and 13 are rejected.
Exception No. 8
Manasota contends that the Hearing Officer's determination that the project will have no cumulative impacts is not a finding of fact but rather a conclusion of law. Whether cumulative impact involves only questions of fact or mixed questions of fact and law does not affect the outcome of this case. Cumulative impact analysis requires the consideration of the precedential effect of granting a permit where there is a reasonable likeliho:d of similar projects in the same location in the future.
Caloosa Property Owners Ass'n. Inc., vs. Department of Environmental Regulation, 462 So.2d 523 (Fla. 1st DCA 1985). The extent of any precedential effect and the likelihood of similar projects in the same location in the future are questions of fact. The Department may properly accept a hearing officer's determination that the evidence does not establish a finding of a cumulative impact. Id. at 527. I would agree that the ultimate conclusion of whether these effects amount to a cumulative impact is, in the final analysis, a conclusion of law. In any event, there is no harm or error in the Hearing Officer's characterization of his statement as a finding of fact.
Manasota also appears to contend that the Hearing Officer improperly applied cumulative impact as a separate test because he stated his finding of no cumulative impact in a paragraph separate from his discussion of the public interest criteria. This contention is without merit and I cannot accept it.
Mr. Erwin testified that when past and future expected mining activities in the general area are taken into consideration there will be no adverse cumulative impact. (Tr. at 213-218) The Hearing Officer's finding is supported by competent, substantial evidence in the record and I shall not disturb it. For these reasons, and for the reasons more fully discussed in my ruling on Manasota's second exception to conclusions of law, Manasota's exception number 8 is rejected.
Exceptions to Conclusions of Law Exception No. 1
In its first exception to the Hearing Officer's recommended. conclusions of law, Manasota challenges the sufficiency of the information presented in connection with Agrico's proposed mitigation plan. In essence, Manasota's argument is that Agrico has not provided enough detailed information "up front to establish its ability to create the mitigation plan, and therefore the Hearing Officer improperly recommended issuance of the permit with additional conditions requiring Agrico to submit certain supplemental information to the Department after the permit is issued. The Hearing Officer's specific finding of fact regarding the additional information to be required of Agrico is as follows:
It is normal practice for DER to incorporate into a permit a requirement that field engineering details of a mitigation plan be worked out after a permit is issued. Details of the on-site mitigation which will be required include:
The incorporation of organic topsoil or mucky find sand on the surface of the wetland.
The size and topography of the drainage basin in relation to the proposed wetland.
The topography of the proposed wetland at a fine scale of detail.
Details of the planting scheme including species to be planted, mulching, and the source of the plants and the mulch.
The source of water to the
proposed wetland.
How the on-site mitigation plan relates to the DNR conceptional reclamation plan.
(Recommended Order at 9-10)
At the outset, it should be noted that the record presents competent substantial evidence to support the conclusion that Agrico's proposed mitigation is conceptually adequateooffset the adverse impacts that would otherwise cause the proposed mining project to be not permittable. For example, the testimony of Mr. Erwin, Dr. Best, and Ms. Redmond are all to this effect. (Tr. at 205-13, 291-94, 338-39, 402-08) The issue raised by this exception is whether additional information and engineering details should
have been included in the permit application in order to demonstrate that the proposed mitigation plan can be properly and successfully implemented.
Ms. Redmond testified in some detail as to the Department's policies and practices regarding the level of detail required for mitigation information being submitted as part of the permit application, in contrast to the amount of supplemental information that can and should be provided by way of field engineering details or other types of supplemental information.
She correctly noted that a reasonable amount of fine detail must necessarily be provided in the permit application, both for the purpose of demonstrating that the mitigation proposal will adequately offset the adverse impacts of the project, and to provide the necessary reasonable assurance that the mitigation can feasibly be constructed and be expected to function as intended. On the other hand, it would be neither desirable nor feasible to require all details of the design to be crystallized and predicted on paper before the
mitigation proposal can be approved. It is equally important that a reasonable degree of flexibility be allowed for the provision of supplemental detailed information, and consequent `fine tuning" of the plan as necessary, as implementation of the proposed mitigation progresses. (Tr. at 338-39, 353-57, 363-64, 390-93, 404-08) One illustrative example that is set forth in the record is the need to make adjustments in the mitigation plan to accord with the final water table under the mitigation site, since it is impossible to predict at the early design stage exactly where the post-mining and post-construction water table will be. (Tr. at 348-52, 355-57) The Hearing Officer's finding of fact no. 31 properly reflects the Department's policies as established by competent substantial evidence at the hearing. This evidence, and the Hearing Officer's findings of fact, support his conclusion that
Agrico has presented reasonable assurances that the mitigation plan proposed to offset the adverse impact on wetlands to be caused by the proposed mining [is] feasible . .
(Recommended Order at 15)
As the Hearing Officer properly notes, the applicant's burden with regard to the feasibility of its mitigation plan is one of reasonable assurance, not absolute guarantees. Here, competent substantial evidence, which included reasonably detailed information submitted at the application stage, established that the proposed mitigation plan was conceptually adequate to offset the adverse impacts of the proposed mining project. Furthermore, competent substantial evidence established that the concepts embraced in the proposal could be translated into reality, provided that sufficient post-application information is provided to the Department and appropriate adjustments made to the plan as necessitated by such information. Accordingly, I find that the degree of supplemental information to be furnished to the Department by way of field engineering details in this case meets the test set forth in Florida Keys Citizens Coalition, supra:
While as a matter of policy, I recognize that some projects may require "field engineering" and post-issuance submissions of engineering or similarly detailed drawings, a permit applicant still must demonstrate that the reasonable assurances exist before commencement of the project.
The post-permit submissions, therefore,
become more in the nature of guarantees that the project will continue to meet requisite standards as designed, as opposed to information designed to establish in the first instance that the project is permittable.
8 FALR at 5570.
For the foregoing reasons, I reject Manasota's first exception to conclusions of law.
Exception No. 2
In its second exception to conclusions of law, Manasota challenges the Hearing Officer's implied conclusion of law that Agrico has met its burden of establishing entitlement to the permit with respect to the requirements of Section 403.919, Florida Statutes, which addresses cumulative impacts.
Although the Hearing Officer does not expressly submit a conclusion of law to this effect, I agree with Manasota that such a conclusion can be reasonably implied from finding of fact no. 37, in which the Hearing Officer expressly finds that "[t]he proposed project will not have any cumulative impact on the upper Payne-Creek watershed." (Recommended Order at 11)
Without apparent objection from the parties, the Hearing Officer considered the upper Payne Creek watershed to be the appropriate area in which to evaluate cumulative impacts. Manasota does not argue that this area is in any way an inappropriate area for consideration, and acknowledges that Agrico established the size of the jurisdictional wetlands that were in the area in the mid-1970's, the number of acres of those wetlands which have been mined, the number proposed for mining, the number proposed not
to be subject to mining, the number of headwater acres as compared to floodplain wetland acres, and the number of acres of mitigation which have been constructed, as well as the number of mitigation acres planned for the future. Manasota's exception is to the fact that Agrico did not establish the number of forested systems contained within the overall area of the headwater wetlands, those wetlands being a mixture of forested and herbaceous systems (although Agrico did provide such information in regard to the particular areas it proposes to mine).
While it appears that Nanasotas observation is correct, and while I agree that it would be preferable to have this information in order to evaluate properly the cumulative impacts in the region, I find that the Hearing Officer's finding of fact No. 37 and his implied conclusion that cumulative impacts will not cause the project to be contrary to the public interest are adequately supported by other competent substantial evidence in the record.
Dr. Best and Mr. Erwin both testified in detail inegard to the cumulative impacts issues. The essence of their testimony was that the type, nature and function of wetlands mined in the upper Payne Creek watershed have been essentially restored by mitigation associated with those mining projects, that the mitigation being proposed for the current mining project would also replace the type, nature and function of wetlands that would be disturbed, and that it could reasonably be expected that wetland losses due to future mining would be compensated by mitigation associated with those projects.
While there would obviously be a time lag for created forested wetlands to reach their full function in replacing existing forested wetlands lost to
mining, Dr. Best and Mr. Erwin were of the opinion that these functions would ultimately be successfully replaced, and that the mitigation requirements of the Department would ensure that adverse cumulative impacts would not result. (Tr. at 213-218, 295-99)
While I find that this testimony supports the conclusion that the proposed project will not result in adverse cumulative impacts, I point out that mitigation may not always be able to offset the adverse impacts or adverse cumulative impacts of a proposed dredge and fill activity so as to result in a permittable project. Each such determination must be based on site-specific facts. Competent substantial evidence in the instant case
establishes that the upper Payne Creek headwater wetlands are in a stressed condition due to previous agricultural, silvicultural and drainage projects in the area; that these wetlands are not providing unique or unusual functions that cannot be duplicated by created wetlands; that they were not found to be habitat for any endangered or threatened species; and that, in many cases, construction of mitigation has preceded the mining activity or will be occurring simultaneously with it, thereby minimizing the interruption of wetland functions. (Tr. at 198-204, 289-92, 296-98) Manasota also contends that the conclusion of no adverse cumulative impacts in this case will require the same conclusion in other applications until all the headwater wetlands in the upper Payne Creek basin are mined. That contention is erroneous, because each permit application must stand on its own merit and must provide anew the necessary reasonable assurance that no cumulative impacts will result. To hold otherwise would be to construe the Department's rules in a way that would render Section 403.919, Florida Statutes, meaningless.
The Hearing Officer's conclusion in this case that there will be no cumulative impact is grounded on findings of fact that are supported in the record by competent, substantial evidence. I am not at liberty to overturn those findings of fact and I concur with the Hearing Officer's conclusion that there will be no cumulative impact. Accordingly, Manasota's second exception is rejected.
Exception No. 3
In this exception Manasota argues that Agrico has not met its burden of proof as to restoring or improving the watz quality and the type, nature and function of the biological systems present at the site prior to the commencement of mining activities. Manasota also argues that Agrico has not demonstrated an ability to restore the biological system of a red maple swamp or of a monospecific sawgrass wetland. As noted in my ruling on the previous exception, both Dr. Best and Mr. Erwin testified that the proposed mitigation measures would adequately restore or improve water quality and the type,.nature and function of the biological systems present at the site prior to mining.
(Tr. at 205-13, 291-94) Likewise, there is abundant testimony to the effect that sawgrass communities can be adequately recreated in the mitigation process. (Presnell, Tr..at 109-11, 160-61; Cutlip, Tr. at 242-47; Redmond, Tr. at 402; Shuey, Tr. at 456). The record also demonstrates evidentiary support for the proposition that a red maple swamp can be successfully recreated. (Best, Tr. at 278-79; Erwin, Tr. at 536-38; Redmond, Tr. at 332)
Finally, it would appear that Manasota seeks to impose a burden on Agrico greater than that imposed by statute or by Department policies or rules: that Agrico should be required to replicate precisely the exact makeup, by species and number, of all botanical components of the impacted wetlands. It is useful at this juncture to point out that, for mitigation generally, it is only
necessary that the mitigation offset thoeadverse impacts of the project which caused the project to be not permittable; and where reclamation and restoration programs conducted pursuant to Section 211.32, Florida Statutes, are tendered for consideration as mitigation, they may be so considered "to the extent that they restore or improve the water quality and the type, nature and function of biological systems present at the site prior
to the commencement of mining activities." Section 403.9l8(2)(b), Florida Statutes. For the foregoing reasons, Manasota's third exception is rejected.
Exception No. 4
This exception is essentially a reiteration of Manasota's exceptions to the Hearing Officer's findings of fact Nos. 5, 6, 9, 10 and 13. For the reasons set forth in my rulings on those exceptions, Manasota's fourth exception is denied.
RULING ON AGRICO'S EXCEPTION
Agrico accepts all of the findings of fact and conclusions of law in the Recommended Order, but contends that an additional conclusion of law must be entered. Agrico asserts that a default permit must be issued with the mitigation plan as originally proposed at the time the default occurred on August 2, 1986. That earlier mitigation plan did not require any on-site restoration. I cannot accept this interpretation of the law.
Agrico's proposed conclusion of law would in effect reduce the evidentiary hearing mandated by the Second District Court of Appeals to a meaningless exercise. If Agrico was not required at the hearing to show reasonable assurance that its proposed restoration or creation of wetlands will mitigate the adverse effects caused by the project, then the hearing mandated by the appellate court would be an exercise in pure form without any substance. As
to Agrico's contention that the permit should issue on the basis of its earlier proposed mitigation plan, that plan was never subjected to a hearing to determine if it did infact provide reasonable assurance. If Agrico wanted to rely on the original mitigation plan it should have put it to the test in the hearing below. Instead, Agrico presented and relied on the modified mitigation plan.
Agrico's reliance on World Bank vs. Lewis, 406 So.2d 541 (Fla. 1st DCA 1981); World Bank v. Lewis, 425 So.2d 77 (Fla. 1st DCA 1982); and AEDEC Inc. v Department of Natural Resources*1 507 So.2d 1225 (Fla. 5th DCA 1987), is misplaced. Those cases did not involve the rights of an intervenor as does this case. If Agrico's view is accepted, then the rights of a substantially affected third-person would be extinguished by the Department's failure to take timely action on an application. Although the default provision of Section 120.60(2), Florida Statutes, clearly ends the ability of the Department to dispute subsequently the entitlement of an applicant to a permit, I cannot interpret the statute as cutting off the rights of third parties who would be substantially affected by the issuance of the permit.
In Manasota-88, Inc. v. Tremor, 545 So.2d 439 (Fla. 2d DCA 1989), the court did not resolve this issue. The court in that opinion held that where the Department rejects a Hearing Officer's conclusion of law that an intervenor has no right to an evidentiary hearing, the agency may remand for a full evidentiary hearing. In so holding the court observed, "[W]e recognize that if Agrico and Tremor are correct the evidentiary proceeding would, in retrospect, have been superfluous." Id. at 442.
While the court did not specifically address the default issue, I did in my Order of Remand, which was not rejected either time the court had an opportunity do so. That prior legal conclusion, which I reassert in this Final Order, is based upon the need to resolve a direct conflict between two very fundamental concepts in Florida's Administrative Procedures Act: the right of a permit or license applicant to receive a definitive decision from an agency on an application within a specified period of time; and the right of persons whose substantial interests are affected by any agency decision to challenge that decision. The Act does not specifically resolve this conflict, nor have the appellate courts yet provided clear guidance. The closest the courts have come to addressing the issue directly can be found in Doheny v. Grove Isle Ltd.,
442 So.2d 966, 975 (Fla. 1st DCA 1983), in which Judge Nimmons stated in his dissenting opinion, "I would not propose that we resolve that interesting question in view of my conclusion that the agency was not in violation of the 90 day rule." Here the parties do not dispute the 90 day violation, and therefore the "interesting question" must be resolved.
The Department attempted to resolve the question previous cases, with somewhat inconclusive results. In the Final Order that was the subject of the Doheny appeal, Grove Isle, Ltd. v. Florida Department of Environmental Regulation, OGC Case No. 81-0337 (Final Order dated May 4, 1982), then Secretary Victoria J. Tschinkel rejected the hearing officer's conclusion that third parties could not challenge default permits, but rejected the third party petition anyway because the petitioner failed to present justifiable issues to meet the pleading requirements contained in Florida Administrative Code
Rule 28-5.201(2). However, in Booker Creek Preservation, Inc., et al. v. City of St. Petersburg et al., 2 FALR 324A (Final Order dated January 24, 1989), then Secretary Jacob D. Varn upheld a recommended order which, among other things, recommended rejection of the third parties' challenge to a default permit, though the final order did not expressly adopt that specific recommendation. In Grove Isle, Secretary Tschinkel suggested that Booker Creek was not binding because that final order did not specifically address the default issue discussed in the recommended order. While not specifically discussing the issue, however, Secretary Varn did state that he accepted all of the hearing officer's findings of fact, and that he was "without authority to add to, change, modify or amend the conclusions of law." Nevertheless, Secretary Varn did not directly address the issue, but Secretary Tschinkel did. It is apparent from her order, as well as the earlier proceedings in this case, that the Department's most current practice is to hold that third parties do have a point of entry into default permits. The question before me, therefore, is whether I should continue to adhere to this policy. In this regard I recognize the courts expect an agency to be consistent in its actions absent a reasonable explanation for a change in policy. See, e.g., Amos v. Department of Health and Rehabilitative Services, District IV, 444 So.2d 43 (Fla. 1st DCA 1984).
My analysis begins with a careful reading of the applicable statutory provision. Section 120.57, Florida Statutes, provides, "The provisions of this section apply in all proceedings in which the substantial interests of a party are determined by an agency ." Section 120.60(2), Florida Statutes, provides, "Any application for a license which is not approved or denied within [the statutory time frames) shall be deemed approved; and - the license shall be issued." It is a generally accepted principle of statutory construction that statutes relating to the same subject should be read harmoniously with each other in order to determine legislative intent. See, e.g., Ferguson v. State,
377 So.2d 709 (Fla. 1979). Section 120.57, Florida Statutes, refers to "all proceedings," and does not exclude agency action that occurs by operation of
law. Such nonexclusion is distinguishable from the situation in Faller et al.,
Florida Department of Environmental Regulation et al., 10 FALR 1351 (Final Order dated February 8, 1988), wherein I reiterated the Department's established position that third parties have no right to challenge a general permit obtained under the authority of Section 403.814(1), Florida Statutes.
See also City of Valparaiso v. Florida Department of Environmental Regulation, 7 FALR 4834 (Final Order dated July 2, 1985). Under the general permit statute, the person complying with the general permit rule may use the permit "without any agency action by the Department." Section 403.814(1), Florida Statutes. As recognized in Valparaiso, the Legislature recognized that there were projects with such minimal adverse impacts that agency action should not be triggered.
In the default permit situation, however, agency action is triggered, albeit by operation of law, and the project could have tremendous environmental significance. The result of the default logically is to impose a sanction upon the agency to ensure that it acts in a timely manner, and not upon third parties whose substantial interests may be impacted by the agency action.
This interpretation is bolstered by an analysis of the statutory history of Chapter 120, by recent trends in cases before the courts and this agency, and by underlying public policy considerations. The 0statutory history has been exhaustively analyzed by Professor Dore in Access to Florida Administrative Proceedincs, 13 F.S.U.L. Rev. 965 (1986), in which she concluded, "[I]n light of the record available, it is reasonable to infer that the legislative committee preferred to complement broad agency discretion to admit persons as parties with broadly stated statutory rights to participate in adjudicatory proceedings as parties." Id. at 1072. As she further states, "The opportunity for an adjudicatory proceeding, either formal or informal, before an agency determines the substantial interests of a party was intended to be broadly available. . . [A]ccess to adjudicatory proceedings in Florida [is] the most generous in the country." Id. at 1081. Certainly this broad availability was not intended to be eliminated because of the failure of an agency to take timely action - then only some, not all of those with substantial interests, would have access to the administrative process. Reading the statutes together, I believe some specific guidance from the legislature would be necessary for me to conclude that such a significant exception from the right to access was intended.
Recent cases also affirm the court's tendency to allow broad access. Most recently, in Challancin v. Florida Land and Water Adjudicatory Commission, et al., 515 So.2d 1288 (Fla. 4th DCA 1987), the court gave the Florida Audubon Society broad rights to challenge water management district decisions pursuant to Section 373.114, Florida Statutes. See also Boca Raton Mausoleum, Inc. v.
Department of Bankinc and Finance, 511 So.2d 1060 (Fla. 1st DCA 1987). The courts have been also critical of the Department's own efforts to limit access rights of third parties. See, e.g., Sullivan v. Northwest Florida Water Management District, et al., 490 So.2d 140 (Fla. 1st DCA 1986), in which the court held that third party objectors to a permit had a right to a Chapter 120 fact finding proceeding to determine whether they would suffer injury in fact as a result of the proposed project; and Manasota-88, Inc., v. Gardinier, Tnc., 481 So.2d 948 (Fla. 1st DCA 1986), in which the court held that a determination by the Department that an activity did not need an air pollution permit constituted agency action, which petitioners had a right to challenge in an administrative proceeding. This last case illustrates what could be a somewhat bizarre result if I were to find no right to challenge a default permit: a person could apply for a permit, the Department could conclude that none was needed and therefore decline to process the permit, a third party could then challenge the agency decision that a permit was not needed, and then lose the ability to pursue that
challenge once the permit was issued by default. Such a result would conflict with another principle of statutory construction, that statutes should not be construed in a manner that would lead to an unreasonable or ridiculous conclusion. See Johnson v. Presbyterian Homes of the Synod of Florida, Inc., 239 So.2d 256 (Fla. 1970).
This concern for access has also been recognized in other Department decisions. See, e.g., American Littoral Society v. Department of Environmental Regulation. et al., 10 FALR 2782 (Order of Remand dated March 21, 1988), in which I held that a petition should not be dismissed when the petitioner was misnamed in the original petition and the misnomer was not corrected until after the time for filing petitions had expired; West Volusia Conservancy, et al. v. Arboretum Development Group, Inc., et al., 9 FALR 1847 (Order of Remand dated March 20, 1987), in which I reaffirmed the Department's position that an unincorporated Florida association has standing under Section 403.4l2Florida Statutes; and Florida Audubon Society, et al. v.
Department of Environmental Regulation. et al., 9 FALR 565 (Final Order dated October 31, 1986), in which my predecessor rejected a hearing officer's recommendation to impose additional standing requirements upon petitioners beyond those explicitly required under Section 403.412. Finally, important underlying policy considerations argue for granting third parties access. As Professor Dore indicates, the right of a person to challenge agency decision making was of central importance to the creation of the Administrative procedures Act. The default provision in Section 120.60(2) is consistent with that right to the extent that it ensures such a person that a decision will be made in a timely fashion. If that section is interpreted to deny other people their rights to challenge, however, the purpose of the Act begins to be defeated. Such an interpretation would allow agency staff to act in collusion with a permit applicant to guarantee issuance of a permit without a right to challenge. While I hope this never would occur, the same result can occur simply as a result of agency mistake or ineptitude. Protection of the public against agency ineptitudes of any stripe obviously is a major consideration in determining whether an agency action should be upheld in an administrative proceeding under the Act. To strip away that protection absolutely for third parties' in default situations places those third parties at a severe disadvantage as to their own rights to protect themselves against arbitrary agency action. It is hard for me to accept that the legislature ever intended such an inequitable result to occur. Therefore, 1 must reject Agrico's exception.
Comment on Typographical Error in Recommended Order
On page 14 of the Recommended Order, the Hearing Officers recommendation mistakenly refers to permit no. 43-1120329. Elsewhere the Recommended Order correctly refers to permit number 53-1120329. I shall deem the Hearing Officer's recommendation to apply to permit number 53-1120329.
Having ruled on all the exceptions it is ORDERED:
The Hearing Officer's Recommended Order is accepted as modified in this Final Order and is adopted and incorporated herein by reference.
The Department shall forthwith issue Permit No. 53-1120329 to Respondent Agrico Chemical Company.
The permit shall incorporate a condition requiring at a minimum that the following field engineering details of the mitigation plan be submitted and approved by the Department after the permit issues:
The incorporation of organic topsoil or mucky fine sand on the surface of the wetland.
The size and topography of the drainage basin in relation to the proposed wetland.
The topography of the proposed wetland at a fine scale of detail.
Details of the planting scheme including species to be planted, mulching, and the source of the plants and the mulch.
The source of water to the proposed wetland.
How the on-site mitigation plan relates to the DNR conceptional reclamation plan.
NOTICE OF RIGHTS
Any party to this Order has the right to seek judicial review of the Order pursuant to Section 120.68, Florida Statutes, by tee filing of a Notice of Appeal pursuant to Rule 9.110, Florida Rules of Appellate Procedure, with the clerk of the Department in the Office of General Counsel, 2600 Blair Stone Road, Tallahassee, Florida 32399-2400; and by filing a copy of the Notice of Appeal accompanied by the applicable filing fees with the appropriate District Court of Appeal. The Notice of Appeal must be filed within 30 days from the date this Order is filed with the clerk of the Department.
DONE AND ORDERED this 19th day of February, 1990, In Tallahassee, Florida.
STATE OF FLORIDA DEPARTMENT OF ENVIRONMENTAL REGULATION
DALE TWACHTMANN
Secretary
Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32399-2400
Telephone: (904)488-4805
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the foregoing Final Order has been furnished by hand-delivery to The Honorable K.N. Ayers, Hearing Officer, Division of Administrative Hearings, The DeSoto Building, 1230 Apalachee Parkway, Tallahassee, FL 32399-1550; Richard T. Donelan, Jr., Esquire, Assistant General Counsel, Department of Environmental Regulation, 2600 Blair Stone Road, Tallahassee, FL 32399-2400; and by U.S. Mail to Peter B. Belmont, Esquire, 511 31st Avenue North, St. Petersburg, FL 33704, Attorney for Petitioner; Thomas Reese, Esquire, 123 8th Street North, St. Petersburg, FL 33701, Co-counsel for Petitioner; Joseph W. Landers, Jr., Esquire, and Richard
A. Lotspeich, Esquire, Landers and Parsons, P.O. Box 271, Tallahassee, FL 32302, Attcrneys for Respondent Agrico, on this 19th day of February, 1990.
STATE OF FLORIDA DEPARTMENT OF ENVIRONMENTAL REGULATION
ROBERT G. GOUGH
Assistant General Counsel Twin Towers Office Building 2600 Blair Stone Road Tallahassee, FL 32399-2400
Telephone: (904) 488-9730
| Issue Date | Proceedings |
|---|---|
| Jan. 05, 1990 | Recommended Order (hearing held , 2013). CASE CLOSED. |
| Issue Date | Document | Summary |
|---|---|---|
| Feb. 19, 1990 | Agency Final Order | |
| Jan. 05, 1990 | Recommended Order | Permit granted to mine wetlands when applicant provided adequate assurances and mitigation by creating new wetlands is accepted. |
